American Fed’n of Musicians v. Carroll, 391 U.S. 99 (1968)

MR. JUSTICE WHITE, with whom MR. JUSTICE BLACK joins, dissenting.

In my view, the Court is misled by the peculiar role of bandleaders and the peculiar economics of the club date music industry, and fashions a rule which, if comprehensible at all, has unfortunate consequences for the delicate and difficult area of conflict between antitrust and labor policy.

The four respondents in No. 309 (hereafter respondents) are successful bandleaders whose success has made it unnecessary for them to continue working from time to time as sidemen and subleaders. However they do work as leaders.{1} Indeed, their business practice was to lead individually whenever they obtained an engagement, hiring a subleader only when they obtained two or more engagements at conflicting times. Leading a band was obviously one important part of their working careers; it was not, however, the only part. Respondents also devoted much time and energy to organizing and managing their businesses. They advertised, and in other ways obtained engagements. They planned the music to be provided at those engagements. They chose, recruited, and supervised the subleaders and sidemen working for them. And they established and directed the administrative operation necessary for obtaining and fulfilling engagements.

The Court accepts the finding that respondents were a "labor" group. I would think it beyond dispute that leading a band (a task which usually includes also occasional playing of an instrument) is "labor group work," but that it is equally beyond dispute that managing and administering a business whose function is supplying bands to fathers of brides is not "labor group work."{2} The first task, leading, certainly possesses "economic interrelationship[s] affecting legitimate union interests,"{3} and the second clearly does not. The Court appears to feel that, because respondents’ work includes some "labor group" tasks, all aspects of respondents’ activities are proper subjects of union concern. I see no reason why the law in this area cannot be sufficiently flexible to grant the union antitrust immunity for regulation of those activities of bandleaders which sufficiently affect union members, while denying that immunity where the union has no proper concern.

Teamsters Union v. Oliver, 358 U.S. 283 (1959), is a difficult case, but an important one, with which I fully agree.{4} Oliver, as I read it, holds that, where independent contractors are doing work for an employer in competition with the work of union members, the union can bargain with the employer to make certain they are not doing that work at a lower wage than that paid to members.{5} Since, in Oliver, an independent truck driver who claimed to be charging the union rate for his labor but received in addition less than his costs for equipment and gasoline would, in fact, be cutting the union wage scale, the Court held that the union did not violate the antitrust laws when it bargained about the total amount -- including both wage and equipment costs -- that the companies would pay to the independent owner-drivers. On the facts before us, Oliver is relevant, but not across-the-board, as the Court seems to think. Here, when one of respondents leads, he does work -- playing and leading -- which is also done by union members, and for which the union has a proper concern. The union thus has a right to see that the respondent does not perform that work for less than the going scale for union musicians and subleaders. Since the leader fixes a single charge to compensate him for both leading and organizing, the union can require the leader to make that charge not less than the union scale for a subleader plus the leader’s costs in obtaining the engagement, hiring the musicians, and planning the program. Since, as Judge Friendly said in his separate opinion below, the price the union requires leaders to charge has not been shown to be "set so high as to cover not merely compensation for the additional services rendered by a leader but entrepreneurial profit as well,"{6} the union should be free of antitrust liability for imposing this minimum rate on charges by leaders when they actually lead. Oliver so holds.

The question is quite different, however, when we deal with imposition of fixed minimum charges by leaders for engagements at which they do not themselves lead. For such engagements the role of the leader is solely that of entrepreneur: he obtains a customer (partly, it appears, through the attraction of his reputation as an established provider of music), makes the necessary arrangements for servicing the customer, including employment and supervision of staff, and maintains the administrative structure required for this work: office, payroll clerk, permanent telephone listing, and so forth. The union has of course a full right to impose on this leader, who is in effect an employer, its minimum scale for work by sidemen and subleaders. The musicians union, however, goes further. It requires that, for an engagement of four or more musicians, the leader charge his customer not less than the sideman’s scale times the number of musicians (including the subleader), plus double the sideman’s scale to compensate the leader, of which one-fourth -- plus the sideman’s scale -- goes to the subleader. The union is clearly requiring that the leader charge his customer more than the total of the leader’s wage bill, even though the leader himself does no "labor group" work.

There is no clear holding by this Court that a union is not immune from antitrust liability when it requires that all the employers with whom it deals charge uniform prices. It has certainly been assumed, however, that the Norris-LaGuardia exemption to the antitrust laws does not extend this far. In Meat Cutters v. Jewel TeaCo., 381 U.S. 676 (1965), the entire Court joined opinions strongly suggesting there is no antitrust immunity for a union which joins with employers to fix the prices at which the employers sell to the public. I wrote, in an opinion joined by THE CHIEF JUSTICE and MR. JUSTICE BRENNAN:

Jewel, for example, need not have bargained about or agreed to a schedule of prices at which its meat would be sold and the unions could not legally have insisted that it do so. But if the unions had made such a demand, Jewel had agreed and the United States or an injured party had challenged the agreement under the antitrust laws, we seriously doubt that either the unions or Jewel could claim immunity by reason of the labor exemption, whatever substantive questions of violation there might be.

381 U.S. at 689. Mr. Justice Goldberg in his separate opinion, joined by JUSTICES HARLAN and STEWART, wrote:

The direct and overriding interest of unions in such subjects as wages, hours, and other working conditions, which Congress has recognized in making them subjects of mandatory bargaining, is clearly lacking where the subject of the agreement is price-fixing and market allocation. Moreover, such activities are at the core of the type of anticompetitive commercial restraint at which the antitrust laws are directed.

381 U.S. at 732-733. MR. JUSTICE DOUGLAS, dissenting in Jewel Tea and joined by JUSTICES BLACK and Clark, wrote:

[T]he unions can no more aid a group of businessmen to force their competitors to follow uniform store marketing hours than to force them to sell at fixed prices. Both practices take away the freedom of traders to carry on their business in their own competitive fashion.

381 U.S. at 737.{7}

Unions are, of course, not without interest in the prices at which employers sell. As the majority points out, by seeing that employers sell at prices covering all their costs, a union can insure employer solvency and make more certain employee collection of wages owed them. In addition, assuring that competing employers charge at least a minimum price prevents price competition from exerting downward pressure on wages. On the other hand, price competition, a significant aid to satisfactory resource allocation and a deterrent to inflation, would be substantially diminished if industry-wide unions were free to dictate uniform prices through agreements with employers.{8} I have always thought that this strong policy outweighed the legitimate union interest in the prices at which employers sell, and, until today, I had thought that the Court agreed. Of course, the lack of discussion of this question in the majority’s opinion, and the failure to refer to the unanimous rejection in Jewel Tea of antitrust immunity for union efforts to fix industry-wide prices, suggest that the Court takes this step without full awareness of the implications and the likely consequences. The step is nonetheless disturbing, and I must record my dissent.

I am also in disagreement with the majority about certain of the questions presented in No. 310. The musicians union imposes its rules not only on respondents, who sometimes lead and sometimes hire subleaders, but upon leaders who never lead personally. These leaders are merely independent businessmen, performing no "labor group" work, and the union has no proper interest in regulating their activities. Even though the District Court found that the union imposed its rules on these leaders, I believe the facts as found below demonstrate that the union formed a combination with those independent businessmen.{9} If the union and employers combined, I have no doubt that some of the regulations agreed upon were unlawful restraints of trade. Boycotting booking agents and caterers who occasionally did business with employers not living by the union’s rules unreasonably restrained trade. So also did combining with willing caterers and booking agents to impose uniform business practices on bandleaders and to boycott those who did not abide by the established rules and policies. Agreeing with employers that the employers would not take their wares to other cities without charging prices 10% higher than the local employers charged was a blatant violation of the Sherman Act. Horizontal division of territories has always been held a per se violation of § 1, e.g., Addyston Pipe & Steel Co. v. United States, 175 U.S. 211 (1899), and it should make no difference that the instigation for this division came from the union and not from the employers. I am unable to see how the practice at issue here is distinguishable from an agreement by General Motors and Ford, at the behest of the UAW, for GM to sell west of the Mississippi only at prices 10% higher than those charged by Ford, while Ford would sell in the East only at prices higher than GM’s. Since union combinations with nonlabor groups which restrain trade are not immune from antitrust attack, Allen Bradley Co. v. Union, 325 U.S. 797 (1945); Mine Workers v. Pennington, 381 U.S. 657 (1965), I think respondents should be permitted to show that these unlawful and unimmunized restraints of trade injured them, and should be able to recover the trebled amount of such damages as they can establish.

By combining with a nonlabor group, the musicians union has obtained effective control of the entire club date industry. The device for this control has been imposition of union membership and union rules on cooperating bandleaders, and on some who did not want to cooperate. I am sure the Clayton and Norris-LaGuardia Acts never intended to give unions this kind of stranglehold on any industry. It may be that the Court views this industry as having special problems of supply and demand requiring special treatment under the antitrust laws. If this is the case, the Court should frankly say so and seek to confine the misguided rules of law it announces. More appropriately, the Court should leave to Congress the task of making special provisions in the antitrust laws for the special circumstances of the music industry. On more than one occasion, Congress has seen to it that the full rigors of the antitrust laws are not felt by industries which cannot survive under competitive conditions.{10} The Court treads dangerous ground in seeking on its own motion to deny to a particular industry the normal competitive conditions envisioned by the antitrust laws, conditions usually viewed as essential for maintaining service and prices at satisfactory levels.

1. Rather, they worked as leaders until their insubordination resulted in expulsion from the union. See 241 F.Supp. 865, 870 (D.C.S.D.N.Y.1965).

2. See Columbia River Packer Assn. v. Hinton, 315 U.S. 143 (1942).

3. 241 F.Supp. at 88.

4. See Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 690, n. 5 (1965).

5. The union could have bargained for restrictions on contracting out of work by the employer. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964).

6. 372 F.2d 155, 170 (C.A.2d Cir.1967).

7. As one commentator has concluded,

Although the Court split on the application of this proposition, all the justices agreed that the antitrust laws would be offended by a collective bargaining agreement binding employers to charge a certain price for their goods.

P. Areeda, Antitrust Analysis 52 (1967). See also Mine Workers v. Pennington, 381 U.S. 657, 663 (1965):

If the UMW in this case, in order to protect its wage scale by maintaining employer income, had presented a set of prices at which the mine operators would be required to sell their coal, the union and the employers who happened to agree could not successfully defend this contract provision if it were challenged under the antitrust laws by the United States or by some party injured by the arrangement.

8. See J. T. Dunlop, Wage Determination Under Trade Unions (1950); C. E. Lindblom, Unions and Capitalism (1949); E. S. Mason, Economic Concentration and the Monopoly Problem (1957).

9. United States v. Parke, Davis Co., 362 U.S. 29 (1960). See also Albrecht v. Herald Co., 390 U.S. 145, 150, n. 6 (1968). I cannot believe that the Court intends its n. 8 to hold that unilateral demands, enforced by threats, combined with willing cooperation or reluctant acquiescence by leaders (who may join the union and, in any event, obey its rules), cannot amount to a combination in restraint of trade.

10. E.g., § 1 of the the Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. § 291 (agricultural cooperatives); § 2 of the Webb-Pomerene Act, 40 Stat. 517, 15 U.S.C. § 62 (foreign trade associations); § 6(b)(1) of the Act of Nov. 8, 1966, 8 Stat. 1515, 15 U.S.C. § 1291 (1964 ed., Supp. II) (joint agreements by professional football clubs).